Judgments against American pharmacies cast doubt on opioid trials

Cleveland.- The recent ruling against three U.S. drugstores for their responsibility in the Ohio opioid crisis can only be the beginning of a long-running legal battle that could ultimately leave communities without any benefit.

The reason for this is the argument used, that pharmacies created a “general inconvenience” by allowing the supply of a large number of powerful painkillers in those counties.

Thousands of state and local governments have sued pharmaceutical companies, distributors and pharmacies in the wake of a crisis that has contributed to more than 500,000 overdose deaths in the United States over the past two decades. The lawsuits generally claim that the companies created inconvenience to the public by disrupting society’s rights in the way they promoted, transported and sold painkillers, exacerbated the abuse for many patients and offered pills that ended up on the black market.

Similar arguments were used in later similar cases – in California and Oklahoma – which benefited companies. Because of this, it is not certain that Tuesday’s verdict – based on a lawsuit from Ohio Lake and Trumbull counties against CVS, Walgreens and Walmart – will survive an appeal or lead to similar verdicts elsewhere.

“Many different decisions have been made recently that force us to be careful about what all this means in the long run,” said Kevin Roy, public affairs director for Shatterproof, which advocates solutions to the opioid crisis.

The industry claims that it did not do anything illegal and that the law on general inconvenience simply does not apply to the supply or distribution of prescription drugs.

“As we have argued throughout this process, we have never manufactured or marketed opioids or distributed them to the rudimentary factories or online pharmacies that have fueled this crisis,” said Fraser Engerman, a spokesman for Walgreens. “The plaintiffs’ attempt to resolve the opioid crisis through an unprecedented extension of the law against general inconvenience is wrong and unsustainable.”

General nuisance laws are often used to find solutions to problems such as abandoned houses, illegal drug sales or the presence of dangerous animals. They were used, for example, in lawsuits against tobacco companies in the 1990s, even though in that case there were cash payments and no lawsuits.

Lawyers representing counties or other localities involved in the vast network of opioid trials claim that companies have been involved in creating health emergencies by opening more stores, flooding communities with pills and facilitating opioid leakage to markets.

In Trumbull County alone, approximately 80 million strong painkillers were prescribed between 2012 and 2016 – the equivalent of 400 for each resident. In Lake County, the number was 61 million pills.

Pastor Barbara Holzhauser has seen the devastation that opioids have caused in her community, Lake County, Ohio. Too many times he has answered the phone and someone informs him of another overdose death. Too many funerals have been held for that matter.

“In almost every case, the person, like my nephew, tried to recover and fell again,” said Holzhauser, whose nephew died of an overdose eight years ago.

Holzhauser, pastor of Mentor United Methodist Church, says the church has destroyed Lake County, a working-class cluster and affluent neighborhoods east of Cleveland. Holzhauser was pleased that the county did something to hold the pharmaceutical industry accountable.

“There is no one I know who has not been affected by this in one way or another,” he said.

Local government attorneys cite the effects of the crisis in communities like Lake County to justify the use of the general nuisance argument, insisting that companies were irresponsible or negligent. Lawyer Mark Lanier argued that pharmacies should have been more responsible in the sale of opioids.

“These drugs are extremely addictive,” Lanie noted, “and throughout this trial, the jury was able to evaluate the nationwide measures used by these companies and shouted loudly: ‘This is inappropriate!’

Despite this, the pharmacy chains have promised to continue in the fight and are optimistic.

In Oklahoma in 2019, a judge ruled that the pharmaceutical company Johnson & Johnson created a general nuisance and ordered the company to pay the state $ 465 million. This month, the state Supreme Court rejected that decision, saying the rule on general nuisance does not apply to the company.

Also this month, a judge in California sentenced a consortium of drugs that had been sued by city authorities for violating the general nuisance rules.

Tuesday’s verdict was different. The Ohio case is also unique in that it was the first to be decided by a jury rather than a court, and it is the first to include claims against pharmacies.

Elizabeth Burch, a law professor at the University of Georgia, thinks it makes sense to use the argument of general inconvenience in these cases because pharmacies are well placed to look more closely at the devastation caused by the opioid crisis.

“It’s the people at the forefront. It’s the people who see the buyers come into the pharmacy, it’s the people who see the same doctor write on the prescriptions,” says Burch.

However, he warned that the application of general nuisance laws varies from state to state and that factors such as a convincing lawyer can affect a jury. Therefore, it is difficult to know whether a consensus will emerge on legal theory.

In the future, there are several cases where general nuisance laws can be tried.

A federal judge in West Virginia heard a case against a drug dealer a few months ago but has not made a decision. Action is underway against distributors in Washington state and against manufacturers in New York.

Unlike companies in other sectors of the pharmaceutical industry, no pharmacy has been involved in a settlement to pay for damages caused by the opioid crisis. Joe Rice, one of the lawyers representing local authorities in these cases, expressed hope that the latest case will lead to pharmacy chains becoming involved in such deals.

Failure to do so may cost them even more. Two Ohio counties, for example, are each seeking more than $ 1 billion in a second phase of the trial, which begins in April or May.

“We will participate in many cases and we will lose some of them,” Rice said. “But we will win this war.”

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